Article excerpt

Legislation that permits prison inmates to be involuntarily hospitalized as a sexually violent predator (SVP) upon the completion of their prison term has been widely enacted across the country. Courts asked to review this legislation have generally upheld it. On the few occasions in which a court has read this legislation in such a way that its scope and impact is narrowed, legislators have tended to respond by enacting additional legislation that clarifies that they intended it to have a broader reach.

Virginia's Sexually Violent Predator Act (SVPA) became effective during the summer of 2003. With three separate rulings, the Virginia Supreme Court provided its first examination of the SVPA, which was subsequently followed by the enactment of additional SVP legislation.

Qualifying "Sexually Violent Offense." In one ruling, the court held that under the SVPA an inmate could be subjected to civil commitment upon release from prison only if the offense for which the inmate is currently serving time is a qualifying "sexually violent offense."

In the case before the court, the inmate had initially been imprisoned for statutory rape, a qualifying "sexually violent offense." After 18 years, the inmate had completed serving the sentence for this crime, but because he had been convicted for other crimes he committed while in prison, he remained in prison for several more years. However, none of these subsequent crimes were sexually violent offenses.

Prior to release, a petition was filed for his commitment as a sexually violent predator (SVP). The trial court ordered him committed after it determined that (1) he suffered from an antisocial personality disorder that made it difficult for him to control his predatory behavior and (2) this lack of control made it likely he would engage in sexually violent acts in the future.

The Virginia Supreme Court reversed this ruling. The court determined that "a person subjected to an involuntary civil commitment proceeding has a substantial liberty interest in avoiding confinement in a mental hospital." As a result, any statute that permits an involuntary commitment process to be initiated by the Commonwealth must be strictly construed.

Guided by this principle, the court concluded that the SVPA requires that a prisoner must be serving an active sentence for a sexually violent offense to be subject to commitment. Because this inmate was no longer incarcerated for a sexually violent offense at the time he was identified as a candidate for civil commitment, the court ruled he was not subject to the provisions of the SVPA. Townes v. Commonwealth, 609 S.E.2d 1 (Va. 2005), at http://www.courts.state.va.us/ opinions/opnscvwp/1040979.pdf.

The Virginia General Assembly during its 2005 legislative session modified the language of the SVPA to encompass inmates who are either (i) incarcerated for sexually violent offenses or (ii) serving concurrent or consecutive time for other offenses in addition to time for a sexually violent offense. 2005 Va. Acts ch. 914. This change and other modifications to the SVPA can be found at http://leg1.state.va.us/cgi-bin/legp504.exe? 051+ful+CHAP0914.

Qualified Mental Health Professionals; Evidentiary Standard. In a second ruling, the court held that it is permissible to rely on testimony from a mental health professional who evaluated the person for whom SVP commitment was sought even though the professional is not licensed to practice in Virginia. The court determined first that the SVPA did not establish that the mental health expert must be licensed in Virginia.

The court then examined the general rules applicable to expert testimony in other civil cases. The court noted that the sole purpose of permitting expert testimony is to help the trier of fact understand the evidence presented or determine a fact in issue. A witness is qualified to testify as an expert, it concluded, when the witness possesses sufficient knowledge, skill, or experience on the relevant subject matter to fulfill this function. …